Immediately following the Not Guilty verdict in the George Zimmerman trial, the hysterical editor-in-chief of ThinkProgress wrote a typically hysterical response. Also typical for TP, he got his facts all wrong.

This is more than just sloppy journalism. Writer and TP founder, Judd Legum, draws heavily on The New Jim Crow, a racist polemic by Michelle Alexander. Not only does the US justice system suffer from institutionalized racism, Alexander claims, there’s a vast conspiracy to replace Jim Crow laws with incarceration:

“Rather than rely on race, we use our criminal justice system to … engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination … are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.”

This conversion from overt discriminatory laws to covert felonization was both stealthy and willful: “The new system had been developed and implemented swiftly, and it was largely invisible, even to people, like me, who spent most of their waking hours fighting for justice.” (Or just maybe, it’s “largely invisible” because it doesn’t exist!)

Legum attempts to substantiate Alexander’s conspiracy theory by deceptive presentation of crime statistics. Below, each point is addressed one-by-one.

1. A black male born in 2001 has a 32% chance of spending some portion of his life in prison. A white male born the same year has just a 6% chance. [Sentencing Project]

This 5.3:1 ratio correlates well with the 7:1 disparity in the commission of crimes, blacks vs. whites. It is not evidence per se of racism in the penal system.

Legum insinuates that police go out of their way to arrest more black perps than whites. But FBI reports on crime statistics show that, by race, arrest rates and the rates of commissions of crimes correlate extremely closely. (In 2011, whites were actually slightly more likely to be arrested for their violent crimes than were blacks.)

Similar findings first appeared in The Color of Crime (“TCOC”), a 1999 study that stirred great controversy because the authors were white supremacists. Though TCOC often overreached, especially when analyzing hate crimes and inter-racial crime, its presentation of crime-by-race data was accurate: blacks as a demographic do indeed commit crimes, especially violent crimes, at a far higher rate than any other racial or ethnic group.

Critics were reduced to the intentionally misleading — “[p]eople of color are disproportionately arrested, sentenced and incarcerated when compared to white people accused of similar offenses” — or the obtuse: one community leader rejected the FBI data on the grounds that it omitted “corporate crime” committed mostly by whites.

The Southern Poverty Law Center, while not objecting to the raw data, insisted that “socioeconomic factors including poverty, education, social status and urban residence account far better for criminal behavior than race.”

Nevertheless, the fact remains that blacks are more frequently incarcerated because blacks more frequently commit crimes.

2. In major American cities, as many as 80% of young African-American men have criminal records. [Michelle Alexander, The New Jim Crow]

That’s over 3x higher than the national average for adults. Where Alexander spots a racist conspiracy, The Southern Poverty Law Center finds socio-economic factors at play. Instead of pointing a finger at the legal system and its commensurate response to the high urban crime rate, shouldn’t we address the culture and environment that produce so many urban criminals?

3. African-Americans who use drugs are more than four times as likely to be incarcerated than whites who use drugs. African Americans constitute 14% of the population and 14% of monthly drug users. But African-Americans represent 34% of those arrested for a drug offense and 53% of those sentenced to prison for a drug offense. [American Bar Association]

Legum deceitfully compares drug use rates with drug arrest arrest rates, as most arrests are for drug sales. (FTR, in 2011, illicit drug use was 8.7% among whites, 10.0% among blacks.) Nor is any distinction made for the type of drug involved.

Blacks are 2 1/2 times more likely to belong to gangs as whites. A large percentage of those arrested for drug violations are gang members. Around 30% of crimes committed by gangs are related to drug sales, and often involve the use of a gun. Nearly half of all youth gang members are involved in street drug sales, greatly increasing their odds of being arrested.

Considerable disparity does exist in the severity of punishment received by black drug offenders vs. whites. But as the very ABA paper cited in the article concludes, this is not due to overt racism, rather “unanticipated consequences” of “ostensibly race-neutral policies.” Foremost is the poor “quality of defense counsel” available most black perps: “too often the lawyers who provide defense services are inexperienced, fail to maintain adequate client contact, and furnish services that are simply not competent.” Another key factor is the profusion of “drug laws that penalize drug offenses that take place within a certain distance of a school more harshly than other drug crimes.” As blacks are more likely to live in urban areas, “blacks convicted of a drug offense are subject to harsher penalties than whites committing a similar offense in a less-populated area.”

The ABA also found that

“[a]t the sentencing stage, low-income substance abusers are also disadvantaged compared to defendants with resources. Given the general shortage of treatment programs, a defendant who has private insurance to cover the cost of treatment is in a much better position to make an argument for a nonincarcerative sentence than one who depends on publicly funded treatment programs.”

Now, is that racist, or economic?

4. In seven states, African Americans constitute 80% or more of all drug offenders sent to prison. [Michelle Alexander, The New Jim Crow]

If you want to exaggerate the severity of a problem, just cherry-pick the data and pass it off as a new stat. Apparently, the overall 53% rate cited in #3 wasn’t quite awful enough for TP’s creative class, white-guilt self-flagellation.

5. Black students are three and a half times as likely to be suspended or expelled than their white peers. One in five black boys receive an out-of-school suspension. Education Secretary Arne Duncan who commissioned the study, said “The undeniable truth is that the everyday education experience for too many students of color violates the principle of equity at the heart of the American promise.” [New York Times]

Nowhere in the NYT article or the Dept. of Education’s report is there a single, concrete piece of data showing racial bias, only innuendo. Comparing generic data, lumped together from every school district in America and for every offense regardless of type or severity, is statistically worthless.

Statements like “Black students are punished more harshly when committing the same offenses as white students” are meaningless when “same offense” is defined as ‘anything leading to a suspension.’

“One thing experts do agree on is that the causes for the discrepancies are complex. Some urban schools with the highest suspension and expulsion rates also have high populations of poor black students, a higher-than-average percentage of whom come from single parent families. Other studies have shown that children from such homes are more prone to disciplinary problems.”

The Education Dept. study, the Monitor reports, “also suggests that the problems are inherent in how American schools are set up, with the lowest paid and least experienced teachers most often working at poorer, urban schools with more discipline problems.” Once again, we encounter socio-economic factors, not racism.

A 2009 study of North Carolina public schools by Josh Kinsler confirms this. Firstly, Kinsler looked only at 6th and 9th graders, to reduce the effect of any ‘reputation bias’ among teachers & principles. He then compared punishment rates across schools, by type of infraction, and between whites and blacks in the same school. His findings are striking:

“Across schools, black 9th grade students receive 22% longer suspensions than white students when committing simple rule violations. This gap disappears entirely when black and white student suspensions are compared within schools…. Within schools, black and white students are equally likely to be suspended and receive similar suspension durations conditional on behavior and a host of other observable characteristics.”

The only racial bias Kinsler uncovered was unexpected: black principals tend to mete out harsher punishments than their white colleagues, especially in schools with large black student bodies.

6. Black youth who are referred to juvenile court are much more likely to be detained, referred to adult court or end up in adult prison than their white counterparts. Blacks represented 28% of juvenile arrests, 30% of referrals to juvenile court, 37% of the detained population, 35% of youth judicially waived to criminal court and 58% of youth admitted to state adult prison. [National Council on Crime And Delinquency]

Again, Legum neglects to mention any mitigating factors, leaving the reader to assume racism is at work. Yet the very paper cited, Justice For Some, admits:

“It is not clear whether this overrepresentation is the result of differential police policies and practices (targeting patrols in certain low-income neighborhoods, policies requiring immediate release to biological parents, group arrest procedures); location of offenses (African American youth using or selling drugs on street corners, White youth using or selling drugs in homes); different behavior by youth of color (whether they commit more crimes than White youth); different reactions of victims to offenses committed by White and youth of color (whether White victims of crimes disproportionately perceive the offenders to be youth of color); or racial bias within the justice system.”

The NCCD report presents data showing that blacks, 17% of the youth population, were responsible for 27.5% of all youth offenses but 45.6% of all violent crimes committed by youths. As a “growing number of states have adopted legislation to exclude certain serious crimes from the jurisdiction of juvenile court and send them directly to adult court”, one would expect black youths, given their greater prevalence for violent crimes, to be more often charged as adults. Youths committing violent crimes are also more likely to be referred to juvenile court instead of remanded to the custody of a relative.

7. The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid. [Michelle Alexander, The New Jim Crow]

This is the sort of moronic non-sequitur that passes for common sense among proglodytes. To imply that racism in the US is worse than it was under Apartheid is the height of insanity.

News flash: crime is always low in police states. Apartheid exerted blanket control over every aspect of the lives of South Africa’s blacks, with an unflinching, militarized police to enforce it. Note Legum won’t compare the US with today’s South Africa, where there’s 55 murders every day, and violent car-jackings are reaching epidemic proportions. Where the police — under a black president — have been re-militarized, and — under a black commissioner — face charges of widespread brutality.

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Blaming the Bogeyman

Unlike Legum’s deceptive bullet points, the real statistics show very little overt racial bias whatsoever in our justice system. What does exist is largely unintentional and linked to socio-economic status. These areas of unfairness must be addressed. But a crusade against the chimera of institutional racism is misinformed, misdirected, and counter-productive. While it may fuel the masochism of ThinkProgress fools, and help dung beetles like Alexander get published, it lets down the very people in whose name these social justice warriors ostensibly act.

In 1911 Booker T. Washington observed

“There is a class of colored people who make a business of keeping the troubles, the wrongs, and the hardships of the Negro race before the public. Having learned that they are able to make a living out of their troubles, they have grown into the settled habit of advertising their wrongs – partly because they want sympathy and partly because it pays. Some of these people do not want the Negro to lose his grievances, because they do not want to lose their jobs.”

A century later, a new generation are playing the same con game. Instead of attacking the real culprits — poverty, dysfunctional schools & families, a sub-culture that actively promotes crime & violence, the rise of gangs, half a century of flawed, failed social engineering — the race-baiters and their prog facilitators target bogeymen.

So long as groups like ThinkProgress continue to spout lies, charlatans like Alexander promulgate conspiracy theories, and demagogues like Jackson & Sharpton spread hate, the real causes of the problem will never be addressed.

Within hours of the news of the shooting death in Sanford, FL, the mob had already found George Zimmerman guilty of the “murder” of Trayvon Martin, then spent the next weeks cherry-picking facts to support their verdict. A superfluous exercise, really, when a single headline had been sufficient for their ‘verdict’: ‘unarmed black teenager wearing hoodie shot and killed by white man in gated community.’ To the reactionary minds of proglodytes, this was incontrovertible proof of a racially-motivated attack. The photo of the angelic teen victim was plastered across the MSM, and the Outrage Brigade girded its loins for yet another crusade against Governor George Wallace The Sparta, Mississippi PD the pervasive institutional racism in our society.

The crusade hit a speed bump when the first photo of Zimmerman showed a face possessing decidedly hispanic features (his mother is Peruvian). For, while proglodytes are convinced that racism lurks in the soul of every Caucasian, they seem incapable of imagining a member of a minority ever hating another minority. They quickly got over this shock and back to interpreting every nuance of the case as evidence of anti-black bias.

As further, less angelic details about Martin started to trickle in, the Outrage Brigade blocked these from their minds, instead labeling the revelations — Martin had been suspended for marijuana possession and/or trespassing, he may have been dealing, a stash of stolen jewelry had been found on his person, he may have punched a bus driver — as a racially-motivated “smear campaign.”

Acceding to the mob’s demands, the U.S. Department of Justice is investigating Zimmerman’s actions as a hate crime. Regardless of what will eventually be revealed about the events, the DOJ investigation should cause great alarm to all freedom-loving Americans. To understand why it is so dangerous, we need to first review some of the legal aspects of this story.

A Legal Analysis of the Incident

(Note: hereafter, I shall refer to Zimmerman as “Z”, and Martin as “M”. Not for convenience, rather to emulate the standard presentation of case law examples, where the particular characteristics of the participants are irrelevant.)

As far as we know, neither Z nor M did anything illegal up until the moment they encountered each other. Foolish, or unwise, perhaps, but not illegal. Z had a right to drive and walk around his neighborhood, and to challenge a stranger. M had the same right to walk, or even run, around that neighborhood, and to tell a stranger to piss off.

There are also several as-yet undetermined things that may have occurred prior to the confrontation, which we can only speculate on. In listing them, I make no assertion of their respective validity.

Z may have:

been earnestly trying to stop a perceived criminal;

been stalking M solely because of his color;

recklessly precipitated a physical confrontation;

uttered a racial epithet.

M may have:

been wandering lost on his first night in the neighborhood;

been casing houses for burglaries;

been stoned;

been scared for his safety;

decided to physically confront Z, instead of fleeing or calling for help.

While a few of these possible actions would be, in & of themselves, minor crimes or inchoate offenses, none can be considered the legal cause of M’s death.

Causation & State of Mind

When assessing culpability for a tort or a crime, the law looks for two things, causation, and state of mind (“mens rea”, or criminal intent).

The causation question is commonly phrased thus: ‘BUT FOR A’s act, would B have suffered the harm?’ The causal link may not be extended infinitely. But for his suspension, M would not have been in that neighborhood that night. Yet that does not mean M’s school principle caused M’s death. The focus is normally placed on the most proximate cause.

The proximate cause of M’s death was the firing of the gun by Z. This does not necessarily mean, however, that Z is guilty of murder, or any crime. The circumstances surrounding the action, the events leading up to it, and Z’s state of mind, all are factors.

Criminal codes vary from state-to-state, but most adopt a standard hierarchy, ranging from premeditated murder, through reckless-, then negligent manslaughter, on down to lesser crimes. The incident does not fit the definition of murder, but could conceivably be deemed manslaughter, were Z found to have acted with reckless disregard of the potential consequences. Z’s state of mind at the time, as compared to what the average person could reasonably be thinking in that situation, would then be a factor.

Z’s act could also be deemed justifiable homicide, which is not a crime. You have the right to use deadly force, if you reasonably fear you will be killed or suffer serious bodily harm. If it is true that, as Z was dialing his cell phone, M violently assaulted Z, knocking him to the ground with a punch to the nose, then straddling him to repeatedly slam his head against the concrete, Z’s fear for his physical safety or life would be eminently reasonable.

All this is for the The State of Florida to decide. If the District Attorney chooses to make a charge, a grand jury must then be convened to indict. If an indictment is issued, a court would then hear the case, and a jury reach a verdict. If a guilty verdict is returned, finally a judge would levy a sentence. That’s known as due process under the law.

Reserved Powers

The mob is impatient of that process, though, and has persuaded the DOJ to proceed with a prosecution of Z for hate crime under the Matthew Shepard Hate Crimes Prevention Act (“HCPA“). That poses dangerous threats to our Constitution, our form of government, and to all our civil liberties.

First, the Constitution reserves for the states what are known as police powers. These are not just cops issuing speeding tickets, rather all form of regulation in the interests of the health, safety and welfare of the state’s citizens. The federal government is only supposed to assume police power within the narrow confines of its enumerated powers. When the HCPA was passed in 2009, some observers noted with concern that it “greatly expands the federal government’s jurisdiction to prosecute cases that properly belong in a state court.”

Laws that expand federal police power always require a “hook” for justification, usually the Commerce Clause. For the Shepard Act, the 13th Amendment’s banning of slavery was also pressed into service as a “hook” via a painfully convoluted argument:

“For generations, the institutions of slavery and … involuntary servitude were enforced … through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating … the … relics of slavery ….”

Second, many argue the HCPA violates the 5th Amendment by subjecting citizens to Double Jeopardy, facing multiple trial & punishment for the same offense. Under the HCPA, the federal government may prosecute “[w]hoever … willfully causes … or … attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person” simply if the U.S. Attorney General determines that either:

the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or a prosecution by the United States is in the public interest and necessary to secure substantial justice.

In plain English, if Eric Holder feels Florida’s ultimate punishment of Z is not sufficiently harsh for his taste, he can try Z again in federal court. Many activists feel this is justifiable, to make up for the “long history in this country, where African-Americans are victims, and state authorities failed to act in a timely and appropriate manner ….”

Additionally, the HCPA seems to punish hatred/bias in isolation. A main defense of bias crime statutes is that they punish the hate only after it has been manifested in a criminal act. Z has yet to even be charged with a crime, yet the DOJ is ramping up to prosecute him. DOJ’s case against Z rests on two elements, and two alone:

M’s skin color was different than Z’s skin color;

Z allegedly uttered a word.

Even if Z did say “coon” — even if saying “coon” is indicative of his hatred of blacks — does that merit a life sentence? The HCPA says it does. Were Z to be acquitted of all charges in Florida, many believe he still deserves to spend the rest of his days in a federal penitentiary.

Finally, although the Shepard Act contains language assuring that “[n]othing in this Act shall be construed to prohibit any constitutionally protected speech”, its sanctioning of extremely harsh penalties, based entirely on what a person says, nevertheless creates a Chilling Effect on free speech.

Z, along with every citizen, has a 1st Amendment right to say “coon” or anything they like, however “distasteful and repugnant”. We also have a right to hate certain groups and to express that sentiment in public (cf. Snyder v. Phelps) But if certain words are enough to send anyone to prison, no one can ever feel safe saying those words. Like all hate crime laws, one unavoidable side effect of the HCPA is a gross infringement of our 1st Amendment rights.

The Constitution Trampled Underfoot

The furor over the incident in Sanford, FL is but the latest example of a clash between increasingly polarized philosophical camps. In their angry scrum to define the narratives that influence both public opinion and public policy, the combatants are trampling our Constitution, and our civil liberties contained therein. The polemics need to end, and the rule of law restored.